Friday, January 9, 2009

The Law's Moral Void

In law, procedure is king. In other words, successfully prosecuting a lawsuit means meeting the required deadlines, filing the proper papers in order in accordance with the official practice book, alleging the appropriate boilerplate facts with the proper citations, and so on.

Failing to follow these technicalities can be fatal to any legal action regardless of the actual substance of the complaint. Fordham University Law Professor Thane Rosenbaum argues in his book The Myth of Moral Justicethat our system of justice is too caught up in these proprietary rituals and formalities: "It exists within a vast labyrinthine maze of bureaucratic an technical procedures, fed by an inexhaustible supply of lifeless statutes and precedent-affirming cases, choked by all those court records, docket numbers, and written forms."

Because of the DMV-like bureaucracy, he maintains among other things in his book that the legal system lacks a moral core because it is far too removed from satisfying basic human emotions and needs. The law is at least (sometimes) effective at protecting the body, but the human spirit receives no legal protection, he says.

We don't buy everything in the book by any means, but he does argue persuasively that the law is emotionally indifferent to the actual grievances of the parties to a legal dispute, and that money damages and imprisonment, the "bread and butter of the law," are by themselves insufficient redress. With so many cases resolved out of court or after a pre-trial conference (and it was our experience that judges tend to pressure the lawyers to settle), or through a procedure-based written summary judgment motion, the litigants simply never receive an opportunity to vent in a public setting. Since many if not all lawsuits contain a strong emotional component, even the winner doesn't "believe the case is all over and the issues are all settled."

While it is impractical or inappropriate to remake the courthouse into a group-hug therapy center or a daytime talk show, it is fair to say that many litigants often find themselves figuratively (or sometimes literally) gavelled out of order before they get a full chance to express themselves. Rosenbaum writes that the law has "no tolerance for the emotional complexity of those who muster the courage to enter the courtroom, with all of their consolidated ambitions and repressed rage, wounded egos, petty jealousies and perennial rivalries, competitive fires and thwarted dreams."

Rosenbaum also explains that facts, as we know them in the real world, have a wholly different definition inside the courtroom: "Facts don't have to be true. The need just need to be found and applied to the law. Facts are artifacts of the justice system, while truths are trademarks of the moral universe. Fact is a legal term; truth is a moral one." He goes on to say that,

Indeed what passes for justice in America is often immoral justice--a resolution that make sense legally and can be explained and justified by judges, lawyers, and law professors simply by conforming, in a very narrow formalistic sense, to precedent and procedure, but ultimately feels emotionally and morally work to everyone else. Justice that doesn't feel just, but instead feels like a colossal misnomer.

We would all agree that the court system requires some rules framework by which to achieve peaceful conflict resolution. That notwithstanding, Rosenbaum has clearly articulated the problem, although the system might not be as entirely bleak as he makes out. His solution? A new (and somewhat vague) paradigm in which in which the court system provides "a forum in which to express our stories of hurts and grievances--uninterrupted, unredacted, indulging whatever emotional releases and excesses accompany our words."

That magnitude of reform is unlikely--and impractical--for a variety of reasons, but again, Rosenbaum's general critique of the legal system is well founded.